Justice
Department e-mail on wiretapping
program released through FOIA

Former
official describes legal defenses as "weak" and "slightly
after-the-fact,"
Guesses they reflected "VP's philosophy… best defense
is a good offense."

For
more information contact:
Thomas Blanton or Kristin Adair
202/994-7000

Washington,
D.C., March 9, 2006 - The Justice Department
official who oversaw national security matters from 2000 to 2003
e-mailed his former colleagues after revelation of the controversial
warrantless wiretapping program in December 2005 that the Department's
justifications for the program were "weak" and had a "slightly
after-the-fact quality" to them, and surmised that this reflected
"the VP's philosophy that the best defense is a good offense,"
according to documents released through
a Freedom of Information Act lawsuit brought by the
Electronic Privacy Information Center and joined by the ACLU and
the National Security Archive.

David Kris, the former associate deputy attorney general who now
serves as chief ethics and compliance officer at Time Warner, e-mailed
Justice Department official Courtney Elwood on 20 December 2005
his own analysis of the controversy, writing that "claims that
FISA [the wiretapping statute] simply requires too much paperwork
or the bothersome marshaling of arguments seem relatively weak justifications
for resorting to Article II power in violation of the statute."
The subject line of the e-mail was "If you can't show me yours."

On 22 December, after reading the Department's talking points as
forwarded by Elwood, Kris
commented that the Department's approach "maybe…
reflects the VP's [Vice President Cheney] philosophy that the best
defense is a good offense (I don't expect you to comment on that
:-))."

On 19 January 2006, Kris
wrote Elwood that the Department's white paper was
"professional and thorough and well written" but that
"I kind of doubt it's going to bring me around on the statutory
arguments."

The Kris e-mails were the only substantive new
documents released by the Justice Department yesterday
in response to the March 8 deadline ordered by U.S. District Court
Judge Henry Kennedy in the FOIA lawsuit brought by EPIC together
with the ACLU and the Archive, seeking the internal legal justifications
used by the government to carry out the wiretapping program. In
three separate letters to the plaintiffs, Justice claimed it had
fully searched the records of the Office of the Attorney General
and had made a "full grant" of the FOIA requests, yet
most of the released material consisted of the previously released
white paper and transcripts of public appearances by the Attorney
General. Justice produced not a single record relating to any of
the 30-odd reauthorizations of the wiretapping program that President
Bush has publicly stated took place in 2002, 2003, 2004 and 2005.

Justice's Office of Legal Counsel (OLC) admitted in its response
that in the two-and-a-half months since the FOIA requests were filed,
OLC had only completed its search of its unclassified files. "The
unclassified files are exactly the place where the wiretapping memos
are least likely to exist," commented Thomas Blanton, director
of the National Security Archive. "This is a case of looking
for your car keys under the street lamp even if that's a block away
from where you lost them."

Documents
released by the Justice Department - March 8, 2006Note: The following documents are in PDF format.
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